Findings Of Fact The Respondent, Walker L. Whaley, is a licensed physician in the State of Florida, having been issued license number ME 0025950. On February 7, 1984, Respondent was convicted, in the United States District Court for the Middle District of Florida, of conspiracy, to wit: Between at least on or about June 1982, and on or about April 7, 1983, Respondent did unlawfully, willfully, willingly, and intentionally combine, conspire, confederate and agree together with persons known or unknown to manufacture cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) Initially, Dr. Whaley was indicted on three counts. He was acquitted of two of the three counts appearing in the indictment against him. There was a mistrial because of the jury's inability to reach a verdict on the remaining count. He was ultimately convicted on the remaining count after a second trial. Respondent's criminal conviction is currently on direct appeal. The matters alleged in the indictment against Dr. Whaley pertain to alleged personal activities and were not alleged to have occurred as part of the conduct of his medical practice.
Recommendation Based upon the foregoing findings of fact and conclusions of law, and upon consideration of the exhibits presented by the parties, it is RECOMMENDED that the Board of Medical Examiners enter a final order finding Dr. Whaley guilty of the act set forth in Section 458.331(1)(c) and imposing the following penalty: suspension of Dr. Whaley's license for one year, followed by five years of probation subject to such conditions as the board may specify. It is further recommended, in accordance with the parties' stipulation, that the imposition of the penalty be stayed until the direct appeal of the criminal conviction has been decided and that, if the criminal conviction is reversed, this case be dismissed. DONE and ENTERED this 16th day of December, 1985, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of December, 1985. APPENDIX Petitioner's and Respondent's
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2009.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint. DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1-2 Accepted. 3-4 Rejected, the transcript reference shows that Respondent was arrested on February 5, 1991, following the May, 1990 incident. 5-6 Accepted. 7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself. Rejected, relevance. Accepted. Rejected, relevance. Accepted. Rejected, weight of the evidence. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Pauline Ingreham-Drayton Attorney at Law Florida Department of Law Enforcement 711 B Liberty Street Jacksonville, Florida 32202 Richard Bova, Jr. 624 S.W. 70th Terrace Gainesville, Florida 32608 Leon Lowry, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
Findings Of Fact The Petitioner, Jack Harold Grantham, is an applicant for qualification and licensure as a limited surety agent, having filed his application there for with the Department of Insurance on or about June 7, 1982. By letter dated October 7, 1982, the Department denied Petitioner's application, citing as the reason for its denial numerous sections of the Florida Statutes. Petitioner was born on March 1, 1942. On or about October 24, 1957, when the Petitioner was 15 years of age, a court proceeding was held in the Circuit Court, Third Judicial District, in and for Suwannee County. In that proceeding, the Petitioner was charged with larceny of an automobile upon an information filed by the State Attorney. The Petitioner pled guilty and was placed upon probation for a period of five years. On June 16, 1976, the Petitioner received a full pardon for the aforementioned conviction, to include the use of firearms. On his application for licensure, the Petitioner answered negatively the question had he ever been charged or convicted of a felony and did not list the conviction of October 1957 on his application, based upon his receipt of a full pardon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's application for licensure as a limited surety agent be granted. DONE and RECOMMENDED this 25th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1983. COPIES FURNISHED: Young T. Tindall, Esquire 1244 South East Third Avenue Fort Lauderdale, Florida 33316 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable Bill Gunter Department of Insurance The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Alcoholic Beverages and Tobacco (the Department), on or about October 9, 1991. The Notice to Show Cause contains a total of 32 counts. Twenty nine (29) counts accuse the Respondent, Bernard Jordan, d/b/a Club Zanzibar, of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver a controlled substance (cocaine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections 893.13(1)(a) and 893.13(1)(f) within Section 561.29(1)(a), Florida Statutes. One count accuses the Respondent of permitting an agent, servant, patron, or employee to unlawfully possess, sell or deliver five (5) liters of non tax paid whiskey (moonshine) to an undercover informant or law enforcement officer on the licensed premises in violation of Sections and 562.451 within Section 561.29(1)(a), Florida Statutes. 1/ One count accuses the Respondent of unlawfully keeping or maintaining the licensed premises for the illegal keeping, using, selling or delivering of substances controlled under Chapter 893.03, in violation of Sections 823.10 and 893.13(2)(a)(5), within Section 561.29(1)(a), Florida Statutes. Finally, the last count accuses the Respondent of failing to exercise due diligence in supervising the licensed premises, allowing it to be used by agents, servants, patrons, or employess for the purpose of possessing, selling, delivering and using illegal substances controlled under Chapter 893.03 (coccaine) and 562.451 (moonshine), 2/ in violation of Sections 823.10 and 561.29(1)(c), Florida Statutes.
Findings Of Fact The Respondent, Bernard Jordan, has owned and operated the Club Zanzibar, located at 2132 Main Street, Tampa, Hillsborough County, Florida, for approximately nine years. He holds alcoholic beverage license number 39-00839, series 4-COP, issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, authorizing the sale of alcoholic beverages for consumption on the premises. (He also operates a package store on the premises.) When the Respondent began operating under his license in 1983, there was much less drug activity in the vicinity than there is now. The clientele of the Club Zanzibar was mixed, in the sense that it included the community's professional and blue collar workers, and also law enforcement employees; but the clientele generally was a stable and settled crowd. Supporters of a local community boys' club regularly met at the Club (and continued to meet there up to the time of the emergency suspension on October 10, 1991.) During the early years of the Club, the package store part of the business had two entrances, and the less controlled access to and egress from the premises did not present a problem for the Respondent. There was relatively little loitering and drinking on the street in front of the Club. Notwithstanding the relatively stable environment, the Respondent did not ignore the potential for unlawful activity on the premises. He utilized an Employee Handbook that all new employees had to read and, after completing a month of probationary employment, sign. Among other things, the handbook informed the employees: If a customer is suspected of performing any unlawful acts in this business, the police will be contacted. . . . Do not accuse a customer of any unlawful acts, if not seen by the employee of the establishment. If the employee is using, has or obtaining [sic] drugs, they will be dismissed immediately. (PLEASE READ NOTICE CONCERNING DRUGS). * * * DUE TO RECENT SUSPICIONS OF DRUGS AND OTHER ILLEGAL MATTERS BEING BROUGHT ON THESE PREMISES, ANYONE ENTERING THIS ESTABLISHMENT IS SUBJECT TO BEING POLITELY CHECKED, AS A MEASURE TO PROTECT THE OPERATION OF THIS BUSINESS. WE OFFER OUR DEEPEST APOLOGIES, BUT POSITIVELY NO DRUGS OR ANY OTHER ILLEGAL SUBSTANCES ARE ALLOWED. * * * No one is allowed to LOITER on the grounds of the establishment and no one should be standing in front of door exits or entrances. 4/ Club employees also were informed on a regular basis that no illegal drugs were allowed on the premises and that employees should keep them out if they could or, if not, should notify the Respondent, who either would take care of it himself or call the police. The Respondent also would "bar" anyone caught with or strongly suspected of having, illegal drugs on the premises. The "bar" was permanent or until lifted by the Respondent. The employees are told to enforce the "bar," and if someone who has been barred ignores an employee's enforcement measures, the employee is supposed to tell the Respondent, who enforces it himself or, if necessary, calls the police. But the Respondent did not hold regular, formal meetings to remind the employees of Respondent's prohibition against the possession, use or sale of illegal drugs and of their responsibility with respect to patrons violating the policy. He did not require his employees to complete employment applications or be screened. Nor did he polygraph his employees. The Respondent also posts five-by-seven inch placards in conspicuous places throughout the premises informing customers and employees alike: Illegal Activities Warning: This establishment is firmly against any illegal behavior! . . . Drugs: Drugs are positively prohibited on these premises! Anyone seen or reported with any form of Narcotics will IMMEDIATELY be reported to the police without warning! (A similar message is related as to dangerous weapons.) Although the Respondent makes efforts to enforce the basic "no drugs" policy, he does not always follow the letter of his warnings and announced enforcement measures. He does not, for example, report drug violators to the police "immediately" and "without warning," as the placards state. Indeed, there is no evidence that the Respondent ever reports drug violations to the police or asks for police or Department assistance to address the issue of drugs on the premises. In recent years, the environment around and in the Club Zanzibar has changed drastically. In recent years, crack cocaine has become a serious problem in the vicinity. Crack is sold predominantly by a crowd that is younger than the historical Club Zanzibar clientele. This younger crowd now mixes with the historical Club clientele. It also loiters around in the street in front of the Club and in the general vicinity. Street sales of crack are so frequent in the area that the street has been likened to a drug supermarket. Anyone, anywhere in Tampa, can come to Main Street in this part of the city and buy crack with almost no wait. The problem has become so bad that the Tampa Police Department has opened a sector office nearby; yet, the drug problem in the area persists despite the greater police presence. Because of changed circumstances in the neighborhood, the Respondent has altered the premises to eliminate one of the two entries to the package store to make it a little easier to monitor those going in and out of the package store. The Respondent also has placed a mirror in the premises to allow whoever is tending bar to monitor the foyer of the Club for possible loitering or illegal activity from a particular vantage point near the cash register. But he did not take steps to improve the lighting in the licensed premises. Nor did he vigorously police his establishment. The Respondent did not hire a manager or adequate security guards to police the licensed premises. The Respondent has volunteers who work for him on weekends and, to some extent, watch for illegal activities on the premises. But these volunteers are retirees who are not particularly effective and their primary function seems to be to collect the cover charge for the Respondent. Even assuming that they were actively policing the establishment, they were not capable of doing the job that should have been done. In response to apparent complaints, the Department sent an undercover special agent and an undercover confidential informant (the CI) into the Club Zanzibar on or about May 31, 1991. (An undercover Tampa Police detective also went as a back-up.) The CI and Agent Murray entered the Club and took a seat at the bar. In a short while, a black male known to the CI as a drug pusher who went by the initials "C.C." walked up to them. (C.C. also had told the CI that he (C.C.) was the Respondent's brother, but the evidence did not prove that C.C. was in fact the Respondent's brother.) The CI told C.C. he wanted to buy "a 20" ($20 worth of crack cocaine.) C.C. left for the men's room and returned with a plastic baggy. He held it up waist high or higher to show them that the baggy contained crack cocaine. He removed some of the crack from the baggy and gave it to the CI. 5/ After examining the crack, the CI told Agent Murray to pay C.C. the $20. There were about 15 people in the Club during the transaction on May 31, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. 6/ No extraordinary effort was made to hide the transaction on May 31, 1991. /7 But neither was the transaction done in an open manner for all to see. The evidence was not clear whether anyone in the bar during the transaction on May 31, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 7, 1991, Agent Murray and the CI again entered the Club. There they talked to Wayne Fowler, who gave them the impression that he was employed at the bar as a manager or bouncer. (However, the evidence did not prove that Fowler was ever employed by the Respondent in any capacity.) The CI asked for C.C. Fowler told him that he (Fowler) was "holding C.C.'s stuff" and asked if they wanted to buy from him or wait for C.C. The CI said they would buy from Fowler, and Fowler passed some crack to the CI's lap, under the level of the bar (but not actually underneath the bar counter top). Agent Murray similarly passed a $20 bill to the CI, who passed it to Fowler. There were about 20 people in the Club during the transaction on June 7, 1991. But the evidence was not clear whether anyone in the bar during the transaction on June 7, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 12, 1991, the CI and Agent Murray, together with a backup from the Tampa Police Department, again went to the Club. This time, they did not see anyone in the Club to buy drugs from, and the CI and Agent Murray were leaving when Fowler came in and met them in the foyer, which was not visible from throughout the Club's interior. Fowler immediately asked them if they wanted to buy crack. They said yes, and Fowler sold them "a 20." The whole transaction took no more than four or five seconds. The participants in the transaction on June 12, 1991, spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone passing through the foyer at the time. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. 8/ The evidence was not clear whether anyone in the bar during the transaction on June 12, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 14, 1991, the CI and Agent Murray again went to the Club Zanzibar to make a drug buy. Shortly after they entered and sat down at the bar, Fowler came in and went over to them at the bar and asked if they wanted to buy crack. They told him they did, and Fowler left the premises. He returned a short while later and walked up behind the empty stool between them and shook some crack out of a handkerchief onto the empty stool. (The bar stools had a back; and the seats were below bar level.) The CI picked up the crack and gave it to Agent Murray, who gave Fowler a $20 bill. There were about 15 people in the Club during the transaction on June 14, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 14, 1991. But neither was the transaction done in an open manner for all to see. The crack was blocked from general view by the bar on one side, by the bar stool back and Fowler on the opposite side, and by the CI and Agent Fowler on either side of the empty stool. The whole transaction took only about five seconds. Although there were people moving about in the Club, as usual, the evidence did not prove that anyone in the bar during the transaction on June 14, 1991, observed the drug deal. On June 18, 1991, the CI, Agent Murray and their backup undercover detective from the Tampa Police Department returned to the Club Zanzibar to make drug buys. Although there were about 15 people in the premises, apparently no one was selling drugs to them, and the CI left to try to find Fowler. The CI found out that a man named Don Vanderhorst was holding Fowler's crack and would sell some to them. Vanderhorst returned with the CI to the Club. There, Vanderhorst showed them a plastic bag containing crack, holding it in a partially concealed manner between waist and chest height, sold them $10 of crack and left. After buying from Vanderhorst on June 18, 1991, the three law enforcement personnel stayed on the premises. A short time later, Fowler came in and went directly over to the CI and Agent Murray to see if they wanted to buy some more crack from him. Fowler passed to the CI, at waist level, a piece of crack folded up in a torn piece of brown paper the size of a quarter coin. Fowler said he would sell it to them for $10. He changed a $20 bill for them and made the sale. There were about 15 people in the Club during the transactions on June 18, 1991. The participants in the transactions spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transactions on June 18, 1991. But neither were the transactions done in an open manner for all to see. View of the Vanderhorst transaction was blocked from the back and sides by the three participants. Although customers generally move around and about inside the Club on a fairly regular basis, these transactions took place on the side of the "U"-shaped bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, near the corner where one end of the bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. There generally is much less traffic in this area since it is a "dead end." An unidentified female bartender might have been able to observe the transactions, but the evidence was not clear whether anyone in the bar during the transaction on June 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On June 19, 1991, the CI and Agent Murray returned to the Club Zanzibar. This time, Fowler was seated at a table inside. After they were seated at the bar, Fowler approached them and asked them what they wanted. Agent Murray answered that they wanted "a 20." Fowler told them quietly and privately that they would have to wait because of the customer seated next to Agent Murray. When the customer left, Fowler proceeded to take out a folded up torn piece of brown paper. Holding it at waist level, he showed them the crack that was in it. He took two pieces and passed them to the CI, who passed them to Agent Murray, who gave the CI a $20 bill to give to Fowler. There were about 15 people in the Club during the transactions on June 19, 1991. The participants in the transaction spoke in a quiet tone in the presence of the customer seated next to Agent Murray but otherwise in a normal conversational tone. The juke box was playing, as usual, and the normal conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on June 19, 1991. But neither was the transaction done in an open manner for all to see. The participants partially blocked the view from the back and sides. The evidence did not prove that anyone in the bar observed the drug deal on on June 19, 1991. On June 24, 1991, Fowler and Vanderhorst were outside talking when the CI and Agent Murray arrived at the Club Zanzibar. Shortly after they entered, Fowler came in and approached them to ask them if they wanted to buy crack. Fowler said that Vanderhorst was "holding my stuff." He left and went to the back of the bar (where the bathrooms are). (Apparently, Vanderhorst also had entered the Club with Fowler and went to the back of the premises, perhaps to the bathroom.) Fowler returned with two pieces of crack which he passed to the CI. Agent Murray gave Fowler $20. There were about ten people in the Club during the transaction on June 24, 1991. No extraordinary effort was made to hide the transaction. The evidence was not clear whether anyone in the bar during the transaction on June 24, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club Zanzibar on July 1, 1991, once again Fowler and Vanderhorst were outside on the street. Fowler followed the two inside and approached them to ask if they wanted crack. They said they did, and Fowler passed some crack to the CI for $20. There were about 20 people in the Club during the transaction on July 1, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 1, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 1, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 5, 1991, the CI and Agent Murray entered the Club Zanzibar to buy drugs but did not see anyone to sell to them. The CI had to go outside looking for Fowler. He found Fowler, who told him he (Fowler) was waiting for his "supply," i.e., the person supplying him with cocaine. The CI brought Fowler back into the Club with him. There, Agent Murray asked Fowler for "some play," i.e., some crack to buy. Fowler told her he would have to "cut" it, i.e., convert it to crack, and left. About five minutes later, Fowler came back in and passed a piece of crack to the CI. There were about 10-15 people in the Club during the transaction on July 5, 1991. The Respondent and his sister were working on the premises on July 5, 1991. No extraordinary effort was made to hide the transaction on July 5, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 5, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 8, 1991, Fowler again was outside on the street when the CI and Agent Murray arrived at the Club. Fowler followed them inside. The Respondent was tending bar. Fowler quietly and privately told the CI and Agent Murray that they would have to watch out for the Respondent. Fowler left them and returned in a minute or two. Fowler kept a close eye on the Respondent and, about three or four minutes later, got an opportunity to do the drug deal without the Respondent seeing it. While keeping a close eye out for the Respondent, Fowler passed two pieces of crack to the CI, who passed the crack to Agent Murray. Murray passed $20 back to Fowler through the CI. Besides the Respondent, there were about 10 people in the Club during the transaction on July 8, 1991. Except when they were lowering their voices so the Respondent would not hear them, the participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. Except for the efforts to keep the Respondent from seeing it, no other extraordinary effort was made to hide the transaction on July 8, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence was not clear whether anyone in the bar during the transaction on July 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. When the CI and Agent Murray arrived at the Club on July 16, 1991, they again saw Fowler outside on the street. Fowler followed them in but stopped in the foyer area and beckoned them to come to the foyer. There, Fowler informed them that the Respondent had barred him from the Club and that they would have to do the deal on the street. The CI protested that he did not want the police to see him. Fowler left, and the CI and Agent Murray returned to the Club. When they left the Club some time later, Fowler met them in the foyer. Within a matter of five to ten seconds, Fowler had passed a single piece of crack to the CI, and Murray passed $20 to Fowler. Although there ordinarily are people entering and leaving the Club through the foyer at fairly regular intervals, it was not proven that anyone passed by during the couple of seconds the drug deal lasted. The evidence was not clear whether anyone in the bar during the transaction on July 16, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 18, 1991, Fowler was sitting outside on the street when the CI and Agent Murray arrived at and entered the Club. Fowler did not follow them in. Vanderhorst was inside, and they asked him for crack, but he did not have any to sell. Eventually, they left. Fowler apparently had been waiting for them in the street and, as the CI opened the door to exit the premises, Fowler met him and kept the door propped open while he offered to sell them crack. Fowler passed crack to CI, and Murray gave the CI $20 to give to Fowler. People were walking by on the street, and it would have been possible for someone in the street or walking into the foyer to observe the drug deal that took place on July 18, 1991. But it was not proved that anyone in the bar during the transaction on July 18, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 22, 1991, Fowler stopped the CI and Agent Murray before they could even get into the Club. Again dealing in the doorway with the door propped open, Fowler passed crack to the CI (in a manner such that Murray herself, who was not looking directly at the transaction, was unable to observe it). The CI passed the crack to Murray, who gave Fowler $20. Again, as on July 18, people were walking by on the street, and it would have been possible for someone in the street or entering the foyer to observe the drug deal that took place on July 22, 1991. But it was not proved that anyone in the bar during the transaction on July 22, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The next day, the CI and Agent Murray returned to the Club Zanzibar. They didn't see Fowler or Vanderhorst. The CI saw someone named Eddie Hall, who was known to the CI to be a "watch dog" for drug pushers. The CI approached him and asked for Fowler and Vanderhorst. Hall left looking for them and returned to tell them that the Respondent had barred Fowler from the Club and that he couldn't come in. Hall told the CI that Fowler was outside and would sell them "a half a packet" (apparently, four pieces of crack) for $20. Just then, Fowler appeared just inside the entrance to the Club and beckoned the CI and Murray to come to him. In all, Fowler was inside the Club for just a matter of seconds (four to five). Fowler met them in the foyer, and the CI told him that they declined the offer to sell "a half a packet" because they were looking for a full "packet." Fowler became irate, apparently at the illogic of their refusal to buy anything. He yelled and screamed and carried on for thirty seconds to a minute until they were in the street. Eventually, the CI and Agent Murray relented in their dubious position and bought a "half a packet" for $20 on the street in front of the Club. 9/ Except for Fowler's yelling and carrying on in the foyer and in the street, the participants in the transaction on July 23, 1991, spoke in a normal conversational tone. The juke box was playing, as usual, and the conversational tone probably could be overheard only by someone sitting immediately adjacent to the participants. As for the Fowler's yelling and screaming, it might have been heard by the bartender, a female named Brunette, and she did not do anything about it before they all moved into the street, but the evidence did not prove that she would have been able to tell that Fowler's yelling and screaming necessarily involved a drug deal. The evidence did not prove that anyone in the bar during the transaction on July 23, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 25, 1991, the CI and Agent Murray again went to the Club Zanzibar. The Respondent was behind the bar. His sister was working there, too. After a time, the Respondent left, and Eddie Hall approached them. He told them that the Respondent was gone and that Fowler wanted to see them outside. The CI objected to doing the deal in the street and went to the front door of the Club and called out to Fowler to come in. Fowler went as far as the foyer and met them there. No employees were nearby. In conducting the transaction, Fowler accidentally dropped a white crack "rock" on the foyer floor. He nonchalantly bent down as if he were tying his shoe and picked it up. 10/ Fowler passed the crack to CI, who passed it to Agent Murray, who gave the CI $20 to give to Fowler. Other than Fowler's effort to pick up the crack he had dropped without attracting attention, no other extraordinary effort was made to hide the transaction on July 25, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, there is no evidence that anyone saw the transaction other than the participants. There is no evidence that anyone in the bar during the transaction on July 25, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On July 26, 1991, the CI and Agent Murray returned to the Club Zanzibar. As they were about to enter, they saw Vanderhorst just outside. Vanderhorst followed them in. The CI went over to Vanderhorst to ask about crack. Vanderhorst said Fowler was waiting to get some from his girl friend. He left to look for them. Later, Vanderhorst returned and told the CI and Murray that Fowler had some crack and would meet them in the foyer. They went to meet Fowler and bought $20 of crack from him. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on July 26, 1991. But neither was the transaction done in an open manner for all to see. It was conducted in the foyer where no employee saw it. Indeed, although there were 10-15 people in the Club at the time, there is no evidence that anyone in the bar during the transaction on July 26, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 2, 1991, Vanderhorst followed the CI and Agent Murray into the Club Zanzibar. Vanderhorst approached them and told them his crack was in his car. Vanderhorst left and returned with a $10 piece of crack. The drugs and money passed inside the bar. There were about 10-15 people in the Club during the transaction on August 2, 1991. The participants in the transaction spoke in a normal conversational tone. However, the juke box was playing, as usual, and the conversations probably could be overheard only by someone sitting immediately adjacent to the participants. No extraordinary effort was made to hide the transaction on August 2, 1991. But neither was the transaction done in an open manner for all to see. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that anyone in the bar during the transaction on August 2, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 14, 1991, the CI and Agent Murray went to the Club Zanzibar and apparently found no one to sell them drugs. The CI went outside to find someone named "Dragon," who was leaving when they came in. The CI returned with someone named James Royal, who had "some dubs" and sold them "a 20" of crack. Royal passed the crack to the CI at chest height (i.e., above the bar). Holding it between his two fingers, the CI showed it to Murray for a few seconds (three or four) before giving it to her. Murray gave Royal $20 for the crack. There were about 15 people in the Club during the transaction on August 14, 1991. No extraordinary effort was made to hide the transaction on August 14, 1991. This transaction also took place on the part of the bar near the corner where it "dead-ends" into the front perimeter wall of the inside of the premises. See Finding of Fact 22, above. The evidence did not prove that the two female bartenders on duty--Pat and Lena--or anyone in the bar during the transaction on August 14, 1991, other than the participants, observed the drug deal or heard any of the related conversation. On August 26, 1991, the Respondent was working in the package store when the CI and Agent Murray entered the Club Zanzibar. Lena was tending the bar. A man known as Adelbert Cliatt or Al Clyde (Clyde) came up to the CI, who asked if Clyde was "still in the business." Clyde said he was but that someone else was holding his "stuff" to reduce the chances that he would get caught. During the conversation between Clyde and the CI, the Respondent came into the Club to try to fix the juke box. The Respondent was kneeling with his back to the bar, about 8-10 feet away from where they were sitting at the bar. While the Respondent was still working on the juke box, someone named Toby Adams came in and joined them. Clyde told Adams, apparently the person holding Clyde's crack, that the CI had asked for "a 20" and to go get. Adams gestured towards the Respondent, afraid to discuss it further or to deal while the Respondent was there. Clyde and Adams then left the Club. When they returned with the drugs, Clyde and Adams just stood behind where Murray and the CI were seated at the bar and waited until the Respondent was finished with the juke box and returned to the package store. Then Clyde took out a piece of crack on a piece of paper to display it to the CI at about chest level. Twice during the five or seven seconds Clyde was displaying the crack to the CI, the CI told Clyde in hushed tones to lower the crack so that it would not be as easy for others to see. The CI also complained that it was not "a 20," but Clyde insisted that it was, pointed out that he was also selling the "shake," i.e., the loose crack particles, that was on the paper. Clyde then folded the paper and gave it to the CI. While the Respondent did not return to the bar area while the transaction was taking place on August 26, 1991, Lena was in the vicinity the whole time and was able to see what was happening, but she showed no interest and did nothing to stop it. It was not proven that the Respondent or any other of the 15 or so people in the Club, other than the participants, observed the drug deal or heard any of the related conversation. Two days later, on August 28, 1991, Agent Murray and the CI returned to the Club Zanzibar and met Fowler on the street outside the Club. As the three headed towards the entrance, Fowler reminded them that he was barred from the Club, and Fowler passed crack to Murray in the foyer. There was no evidence that anyone other than the participants saw the transaction or knew that drugs had been passed. Agent Murray and the CI then continued into the Club. Although Fowler had not yet been paid for the crack, he did not follow them but stopped at the end of the bar nearest the entrance. The Respondent saw Fowler and went over to talk to him. The evidence was not clear what was said, but no more than a minute later, Fowler left. 11/ While the CI and Agent Murray were inside the Club, someone named Clements came in and approached them to tell them that Fowler was "waiting for his package," i.e., his $20. The CI told him, "later," and Clements left. A little while later, Fowler came back into the Club, went up to the CI and Murray at the bar near the entrance, and began to yell at them for not giving Clements Fowler's money. The CI or Murray apparently told Fowler to keep it down, because Fowler informed them that he had seen the Respondent leave, apparently to assure them that it was safer now (even though Brunette still was there). While Agent Murray handed Fowler the money, the CI explained to Fowler that they were not sure Clements would give Fowler the money and that they wanted to give it to him personally. This seemed to satisfy Fowler. Brunette was able to hear Fowler arguing loudly with Murray and the CI and did not intervene or try to find out what the argument was about. But the evidence did not prove that Brunette could hear or could tell what it was that they were saying. The CI and Agent Murray were back at the Club on September 10, 1991. Apparently, there was no one inside to sell them drugs, so the CI went outside. On his return, he told Murray that Fowler was outside "doing a deal." A while later, Fowler came into the Club and joined them. He held a small brown bag up to about chest level to show them the crack inside and then gave it to them. Agent Murray gave Fowler $20. During the conversation between the CI and Fowler on September 10, 1991, the CI asked if Fowler was "back in with " the Respondent, to which Fowler answered that he was. The evidence was not clear whether the CI meant, or that Fowler understood, anything by the question other than that the CI thought Fowler was barred from the Club and was surprised to see him back inside. The CI also asked Fowler if Fowler worked at the Club. Fowler glanced back at the CI, making a face as if to ask, "are you crazy?" and answered, "no way." The CI then asked, "you mean [the Respondent] wants to bar you but still wants you to do favors for him?" and Fowler answered, "yes." However, again, the meaning of this exchange was ambiguous. There were about ten people in the Club during the transaction on September 10, 1991. No extraordinary effort was made to hide the transaction. The Respondent was not there. The bartender on duty, Debra, was new and did not work at the Club very long before her employment was terminated. The evidence was not clear whether she witnessed the transaction or heard the conversation, or heard or saw anything suspicious (although it is possible that she did.) The transaction took place on the side of the bar opposite the entrance to the Club, between the bar and the right hand perimeter wall of the premises, half way to the corner where the "U"-shaped bar "dead-ends" on that side into the front perimeter wall of the inside of the premises. Although customers generally circulate fairly regularly throughout the premises, there generally is much less traffic in this area since it near the "dead end." See Finding of Fact 22, above. There were people playing dominos at a low table in the corner behind the bar where the transaction occurred, but it was not proven that the transaction could have been observed from the domino table. The evidence did not prove that anyone in the bar during the transaction on September 10, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The CI and Agent Murray returned to the Club on September 13, 1991. The Club was crowded; there were 20-25 people there. Lena was tending bar; the Respondent's wife was in the package store; the Respondent himself was not there. At one point, while the CI and Murray were seated at the bar, a man called "Big John" Polite walked up to them, and the CI told him that Murray wanted "a 20." Polite asked if they wanted to do the deal in the Club, and the CI said, "yes." Polite left to go to the men's room, where he said his crack was, and returned to where they were sitting. He walked up between them and passed the crack to the CI under bar level. The CI passed it to Murray, who put it on a napkin on the bar counter top, wrapped it up, and put it in her pocket. Murray then passed $20 to Polite. The man sitting next to Murray at the bar on September 13, 1991, easily could have seen the crack, but the evidence did not prove that he did, or that he would have known what it was. Others also could perhaps have recognized that a drug transaction was occurring, but the evidence did not prove that anyone else in fact knew it was happening. With the juke box playing, and the crowd making noise, probably only someone actually involved in the conversations with Polite would have been able to hear them. When the CI and Agent Murray were in the Club on September 17, 1991, it was again crowded, with about 25 people inside. Brunette and a man named Carl were tending bar. There was confusion in the testimony as to who Carl was. The CI understood him to be the Respondent's cousin, Carl Jordan. The Respondent testified that he had no cousin named Carl Jordan. He admitted he had a cousin name Carl Warmack, who sometimes accompanied him to the Club, but said his cousin Carl was severely retarded and incapable of tending bar or doing anything other than simple menial chores. The CI and Agent Murray did not seem to think that the person they identified as Carl Jordan was retarded. Seated at the bar on September 17, 1991, on the side where there is less traffic circulating, 12/ Murray and the CI observed an unidentified female patron holding three crack "rocks" in her open palm while fingering them with her other hand. She did this in the open so that others seated on that side of the bar also would have been able to see. But it was not proven that anyone else in fact saw what she was doing or knew she had crack in her hand. A little later, Clyde walked up to them, and Murray asked for "a 20." Clyde left and returned shortly to pass some crack to Murray under bar level. Murray put the crack in her pocket and passed $20 to Clyde. "Carl" did nothing about the drug deal between Clyde and Murray. Much of the time while this transaction was taking place, "Carl" was talking to the CI within about three feet from where Murray was sitting. He could have seen the transaction but the evidence did not prove that "Carl" in fact saw it or knew it was taking place. Nor did the evidence prove that Brunette saw the transaction or knew it was taking place. On September 19, 1991, Agent Murray and the CI again went to the Club. Lena was tending bar. The Respondent's daughter also was there. It was crowded, with about 25 people inside. During the time they were there, Murray saw Clyde and asked him for "a 20." Clyde pulled a small brown bag out of his shirt pocket, took out three pieces of crack, and passed them to Murray below the level of the bar where they were sitting. Murray then passed Clyde $20. There were people sitting all around the bar, but the evidence did not prove that anyone saw the transaction to that point. Then, Murray held the crack up for Lena to see and asked her if it was "hard white," a common illegal drug dealing slang intended to describe the potentially dangerous kind of crack that is "cut" with baking soda. Lena lit a cigarette lighter to see it better, looked at it for a moment and answered, "it looks beige to me." Crack that is "cut" in the acceptable manner has a beige-like color and is referred to as "beige" in illegal drug dealing slang. It is found that Lena was using the drug dealing slang. On September 26, 1991, Agent Murray and the CI were at the Club sitting at the bar. The CI called over to a man named David Glover, a/k/a Jake, who was playing dominoes. Glover came over and sat in the bar stool next to the CI. There, Glover sold the CI crack for $25. There were 15-20 people in the Club on September 26, 1991. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. This transaction took place on the side where there is less traffic circulating. See Finding of Fact 61, above. However, after the deal, the CI called the bartender, Debra, over and asked for a napkin. He put the crack on the napkin on the bar counter top and asked her if she knew what it was. She looked at it and, knowing what it was, simply said, "you better get it off the bar." Debra was terminated shortly afterwards for reasons not disclosed by the evidence. (The Respondent said only that "she didn't work out.") According to the evidence, Agent Murray's last visit to the Club Zanzibar was on October 8, 1991. She and a backup sat at the part of the bar closest to the domino table. Clyde walked up, and Murray asked for "a 20." She gave him $20, and Clyde went to the domino table to talk to someone and then left. The unidentified person with whom he had spoken came over and told Murray that he could get whatever she wanted if Clyde couldn't. Murray told him that Clyde had just left with her money and that she hoped Clyde had what she wanted. A little later, Clyde returned and passed Murray a crack "rock" at the bar under bar level height. After the deal with Clyde, the Respondent walked behind and past where Clyde and Murray were, but the evidence did not prove that the Respondent saw anything suspicious occurring. After the drug deal with Clyde, Murray beckoned to the unidentified male with whom she had spoken earlier. He gestured acknowledgement and came over shortly. Murray asked him for $10 worth of crack. He said he would get it and returned shortly to say it would have to be "a 20." Murray said, "OK," and passed him a $20 bill. He passed her the crack at waist level as he walked past her. There were about 15 people in the Club on October 8, 1991. The Respondent was there. Brunette and "Carl" were behind the bar. No extraordinary effort was made to hide the transaction. But neither was the transaction done in an open manner for all to see. From where Murray was sitting, her back and Clyde's back were between the transaction and the domino table. The unidentified pusher sneakily slipped the crack to Murray as he walked past between her and the vantage from the domino table. The evidence did not prove that anyone in the bar during the transaction on October 8, 1991, other than the participants, observed the drug deal or heard any of the related conversation. The Respondent testified that he later barred Clyde for drug activity. On or about October 10, 1991, the Club Zanzibar was raided by Tampa Police, arrests were made, and an Emergency Suspension Order issued by the Department was served. The Club has not been in operation since then. There is no evidence that the Respondent ever asked the Division or the Tampa Police for help in controlling illegal drug use on his premises. He did not ask the police to send undercover agents into the area and his establishment to make cases against customers who broke the drug laws or to "test" his employees. There is no evidence that the Respondent gave the Tampa Police intelligence information regarding the source of illegal drugs in the area. Nor did he work as closely or as diligently with local community leaders as he could have. Since the Club Zanzibar has been closed, illegal drug activity in the immediate vicinity has decreased markedly. This is a common occurrence for some period of time after a police raid. Longer periods of decreased drug activity also can be explained by the arrest of some of the participants in the illegal activities and by the fewer number of people in the area, which translates to fewer potential drug buyers in the area. The extended duration of decreased illegal drug activity after the raid in this case (almost two months, through the time of the final hearing) is somewhat unusual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the Respondent's license for six months from entry of final order and fining the Respondent $1,000. RECOMMENDED this 21st day of February, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1992.
